Suchergebnisse

The most important development in conflict of laws for many years is the enactment of the conflict of laws provisions of the Uniform Commercial Code.' In adopting these provisions the General Assembly did much more than to fix the law for the specific matters covered, important though these are. The General Assembly rejected one widely urged method of choice of law, and it prescribed a wholly different one. It rejected the old vested rights theory which calls for the use of the law of the place of the last element of a transaction to govern the case, as, the place of acceptance of an offer to govern the validity of a contract and the place of injury to govern a tort. The Code pushes aside these technical connections. In their place it employs business connections to identify the state whose law is to be used, that is, the place of a thing, the business headquarters of a person, the state on which the parties agree, and when other connections fail of application then "an appropriate relation."

Under our federal system of government two sets of laws operate within the country, the laws of the constituent states and the laws of the central government. For lawyers there is the ever present question, which of them applies to a case: the law of a state, to be interpreted finally by the courts of the state; or national law--federal law, as it is usually called--of which the Supreme Court of the United States is the final arbiter? Interstate and international matters, with which conflict of laws deals, involve national as well as state interests. In the United States it was perceived early that they should not be left to the uncontrolled discretion of the several states, and even the loose Articles of Confederation had a rudimentary full faith and credit clause. It was a major purpose of the Constitution of the United States to give to the nation increased control over these matters. One of the shortcomings under the Articles of Confederation was that the nation lacked power to enforce its laws directly on the individual citizens, and was under the necessity of appealing to the states to take the desired action. A second shortcoming was that the states could and did discriminate against one another, particularly in trade and commerce. A third was the inadequacy of legal protection accorded the individual against government. These weaknesses were all dealt with by the Constitution either at once or shortly.

Private law--particular rules created for and applied to particular individuals to govern their relationships with each other--is a marked characteristic of society. People in a nation of free enterprise with a developing, malleable economy must have the freedom and the power to shape their legal relations with one another through the use of rules of law suited to their goals. Most of this law--contracts, wills, and trusts--has only temporary effect. The terms are limited, and all of it is for a private, rather than a public purpose. The limited scope of private law, however, is not a good measure of its influence. The private legal process as a part of our system of jurisprudence makes a great contribution to the social life. Many new forms of legal relations trace their origins not to the courts or to the legislature, but to a new kind of instrument first created in the lawyer's office.

Professors Cheatham and Maier raise the question, "What are the sources of the law applied in private international cases?" The authors consider this question under two main headings. The first deals with the "authoritative sources" of private international law applied in United States courts. It considers the question, Where, within the complex governmental structure of the United States, does power over private international matters rest?" Several possible sources are considered: public international law, state law, and federal law, and within federal law, the major components: international agreements, legislation, federal common law and executive law. The second part of the article deals briefly with the "fundamental sources" of private international law. Here, the authors seek to identify those basic policies which guide a law-making body in laying down and developing principles of private international law. In the process, they suggest a number of "threats" to the development of effective private international rules.